Case Number: BC667570 Hearing Date: December 14, 2018 Dept: 2

Defendant’s Motion for Issue, Evidence, or Terminating Sanctions and for Monetary Sanctions against Plaintiff, David Asch, and his Counsel of Record

Defendant’s Motion for Issue, Evidence, or Terminating Sanctions and for Monetary Sanctions against Plaintiff, David Asch, and his Counsel of Record, filed on 11/16/18, is GRANTED. Cal. Code Civil Procedure §2023.010. The Court imposes an issue sanction against Plaintiff to preclude any evidence of physical injury suffered by Mr. Asch, given his refusal to proceed with an examination of his injuries, which is permitted by statute. There does not appear to be sufficient time to compel his appearance at another IME, given that trial is scheduled for 1/7/19.

Any party may demand a physical or mental examination. Cal. Code Civ. Proc. § 2032.020. Plaintiff has not offered any reasonable justification for his refusal to proceed with the examination because Dr. Robert Klapper had his assistant take Plaintiff’s history.

Defendants’ Notice of IME clearly advised Plaintiff that the examination would consist of taking a history, among other things, and would be consistent with “the practice of orthopedics in Southern California” including procedures and tests routinely performed by physicians examining patients for orthopedic conditions. Motion, Ex. A, 2:8-13.

Plaintiff did not object to the notice, or demand that no other personnel be involved in his examination, or seek a protective order preventing such involvement.

Plaintiff claims it is an invasion of privacy for another person to take his history. Opposition, 6:19. However, the privacy protection is not absolute. Plaintiff waives his right to privacy by placing his orthopedic injuries at issue by filing this lawsuit. Vinson v. Superior Court, 43 Cal.3d 833, 839 (1987).

The statute governing the conditions of the examination require that the examination not include “any diagnostic test or procedure that is painful, protracted, or intrusive.” Cal. Code Civil Procedure § 2032.220(a) (1). Plaintiff did not object to the taking of his history and has not specifically described why a nurse’s involvement is so intrusive as to warrant avoiding the entire examination.

Defendants are entitled to sanctions for Plaintiff’s failure to submit to an authorized method of discovery without substantial justification, which is discovery abuse. Cal. Code Civil Procedure § 2023.010(d). Issue sanctions may be imposed for discovery misuse. Cal. Code Civil Procedure § 2023.030(b).

The Court also imposes monetary sanctions of $1,625, against Plaintiff, David Asch, and his counsel of record, Citywide Law Group. Such sanctions are payable within thirty (30) days.

Moving party is ordered to give notice.

Defendant’s Motion for Issue, Evidence, or Terminating Sanctions against Plaintiff, Brook Glaser, and for Monetary Sanctions against Plaintiff, Brook Glaser, and his Counsel of Record

Defendant’s Motion for Issue, Evidence, or Terminating Sanctions against Plaintiff, Brook Glaser, and for Monetary Sanctions against Plaintiff, Brook Glaser, and his Counsel of Record, filed on 11/9/18, is GRANTED. Cal. Code Civil Procedure §2023.010.

Mr. Glaser’s refusal to comply with the court’s order of 10/29/18 constitutes discovery abuse under Cal. Code Civil Procedure §2023.010 for which terminating sanctions are ordered pursuant to §2023.030(d). The claims alleged in the complaint on behalf of Brook Glaser are dismissed.

On 10/29/18, the court GRANTED Defendants’ motion to compel Mr. Glaser to appear for a deposition within seven days, by November 5, 2018. The parties agreed to 11/2/18 for the deposition.

Defendants are permitted by statute to record the deposition by audio or video technology. Cal. Code Civil Procedure § 2025.220(a)(5).

Prior to the Court’s order compelling Mr. Glaser to appear, Defendants served a Notice of Taking Deposition on 6/22/18, which included a Demand for Production of Documents and indicated Defendants’ intent to record by video tape. Motion Ex. A, 2:1-5. Plaintiff did not appear. Motion, Ex. B. On 10/29/18, the Court granted Defendants’ motion to compel.

Defendants then gave notice to Mr. Glaser to appear for his deposition on 11/2/18. Motion, Ex. C. Plaintiff appeared with an objection to the request for production of documents and the use of the videographer. Motion, Ex. D. The record reflects Plaintiff’s counsel refused to proceed because the Court’s order did not mention anything about a videographer or about documents being produced. Motion, Ex. E, 3:8-11.

Mr. Glaser was always on notice of the Request for Production of Documents attached to the Notice as well as Defendants’ intent to use a videographer since the first Notice of Taking Deposition, Motion, Ex. A. Plaintiff did not object to that notice; Plaintiff failed to appear. The Court ordered Plaintiff to appear for his deposition as duly noticed by Defendants.

Defendants’ essentially served the identical Notice of Taking Deposition on Plaintiff for the 11/2/18 deposition. His new objections to the identical notice that were never raised before are not made in good faith. Mr. Glaser did not file an opposition to this motion to establish substantial justification for his refusal to comply with the Court’s order.

Mr. Glaser’s refusal to comply with the Court’s order is a misuse of the discovery process for which terminating and monetary sanctions are warranted.

Accordingly, the Court imposes monetary sanctions of $1,625.00 against Plaintiff, Brook Glaser, and his counsel of record, Citywide Law Group, for misuse of the discovery process. Cal. Code Civil Procedure §2023.030(a). Such sanctions are payable within thirty (30) days

Moving party is ordered to give notice.